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technology.ccci.org

Fair Use of Copyrighted Material

Fair use is a statutory exception to normal copyright principles which allows the public is to use portions of copyrighted materials for certain purposes including commentary and criticism among other things.  For example, you are allowed to quote a portion of an author’s work without asking permission for the purpose of criticizing or complementing the work. 

Fair use can be a defense for using another’s copyrighted work without permission.  If a copyright owner disagrees with your use, you may have to resolve the dispute by courts or arbitration.  This should serve as a reminder of the importance of being careful how you use copyrighted works.  Fair use is not as broad a concept as people would like to think.  Even though some uses are allowed, they are evaluated on a case by case basis.  Ideally, you do not want to find out if your use was fair by being involved in such a case.  If there is a question in your mind as to whether your use of copyrighted works would constitute infringement or fair use, please contact our office. 

Here are some examples of cases from http://fairuse.stanford.edu:

Text Cases

Not a fair use – An author copied more than half of an unpublished manuscript to prove that someone was involved in the overthrow of the Iranian government. Important factors: A substantial portion was taken (half of the work) and the work had not yet been published.  Love v. Kwitny, 772 F. Supp. 1367 (S.D. N.Y. 1989).

Fair use – A biographer of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright. Important factors: No more than 1% of Wright's unpublished letters were copied and the purpose was informational.  Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).

Artwork and Audiovisual Cases

Not a fair use – A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death. Important factors: The court felt that the portions taken were substantial and part of the "heart" of the film.  Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1100 (2d Cir. 1982).

Fair use – The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. Important factors: A small portion of film was taken and the purpose was informational.  Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).

Internet Cases

Not a fair use – Entire publications of the Church of Scientology were posted on the Internet by several individuals without Church permission. Important factors: Fair use is intended to permit the borrowing of portions of a work, not complete works.  Religious Technology Center v. Lerma, 40 U.S.P.Q. 2d 1569 (E.D. Va. 1996).

Fair use – The Washington Post used three brief quotations from Church of Scientology texts posted on the Internet (see previous case). Important factors: Only a small portion of the work was excerpted and the purpose was for news commentary.  Religious Technology Center v. Pagliarina, 908 F. Supp 1353 (E.D. Va. 1995).

Music Cases

Fair use – A person running for political office used 15 seconds of his opponent's campaign song in a political ad. Important factors: A small portion of the song was used and the purpose was for purposes of political debate.  Keep Thomson Governor Comm. v. Citizens for Gallen Comm., 457 F. Supp. 957 (D. N.H. 1978).

The following are helpful resources that will give you more in-depth definitions of fair use as well as relevant case decision that apply to the type of use you are seeking:

http://fairuse.stanford.edu

http://copyright.iupui.edu

http://www.uspto.gov

http://www.copyright.gov

Common Misconceptions About Fair Use

It must be fair use because:

• We are giving it away free or only covering our costs
• We are a ministry.
• We are a non-profit organization.
• The work is that of a Christian, they wouldn’t mind – Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110 (9thCir. 2000).
• We don’t have the money for a license.

Fair Use Checklist: http://copyright.iupui.edu/checklist.htm (good tool)

When deciding if the use was fair, judges consider the following 4 factors:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

As you can imagine, these factors allow the judge incredible room for interpretation and makes it difficult to predict how a case will turn out.  However, in 1994, the Supreme Court stated that the purpose and character of your use is the primary factor considered.  Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, (U.S.1994).  The main question asked is whether the material was copied verbatim or used for the purposes of creating something new.  The latter is favored a being a fair use.  While educational purposes are often thought of as a fair use, it is not always the case.  The following quotation explains why.

While fair use is intended to apply to teaching, research, and other such activities, a crucial point is that an educational purpose alone does not make a use fair. The purpose of the use is in fact only one of four factors that users must analyze in order to conclude whether or not an activity is lawful.

Moreover, each of the factors is subject to interpretation as courts struggle to make sense of the law. Some interpretations, and their subsequent reconstruction by policy-makers and interest groups, have been especially problematic. For example, some copyright analysts have concluded that if a work is a commercial product, the "nature" factor weighs against fair use. By that measure, no clip from a feature film or copy from a trade book could survive at least that fair-use factor. Similarly, some commentators argue that if a license for the intended use is available from the copyright owner, the action will directly conflict with the market for licensing the original. Thus, the availability of a license will itself tip the "effect" factor against fair use. Neither of these simplistic constructions of fair use is a valid generalization, yet they are rooted in some truths under limited circumstances. Only one conclusion about the four factors is reliable: Each must be evaluated in light of the specific facts presented.

By Kenneth D. Crews, http://copyright.iupui.edu/highered.htm#107   Copyright © 2002 Indiana University

Fair use Guidelines

“Because of the vague nature of the exemption, a group of publishers, authors and educators gathered to agree on an interpretation of the fair use exemption which would in turn provide more specific guidelines to that certain users could follow and be reasonably sure that they would not be in violation of the copyright law.” 

• See Fair Use Guidelines atwww.libraries.psu.edu/mtss/fairuse/guidelines.html

Guidelines are not law, but advisory and have been promulgated for Educational Multimedia.

These guidelines have been developed for educational multimedia projects which are created by educators or students as part of a systematic learning activity by nonprofit educational institutions.

1. – non-profit organizations whose primary focus is supporting research and instructional activities of educators and students for non-commercial purposes.
2. Educators – faculty, teachers, instructors, and others who engage in scholarly, research and instructional activities for educational institutions.
3. Used only for educational purposes – systematic learning activities including use in connection with non-commercial, curriculum-based learning and teaching activities by educators to students enrolled in courses at nonprofit educational institutions or otherwise permitted under Section 3.
4. Educator Use for Curriculum-Based Instruction – face-to-face instruction, assigned to students for directed self-study, or for remote instruction to students enrolled in curriculum-based courses and located at remote sites, provided over secure real-time network, or after class review with limits for access and copying.

Limitations on Use

Time Limitations – for a period of up to two years after the first instructional use
with a class; use beyond that time period, even for educational purposes, requires permission for each

Portion Limitations

1. Up to lesser of 10% or 3 minutes
2. Text Material – Up to lesser of 10% or 1000 words of work consisting of text
   material
   1. 
      poems by one poet, or five poems by different poets from any anthology. For poems of greater length, up to 250 words, but no more than three excerpts by a poet, or five excerpts by different poets from a single anthology.
3. Music, Lyrics, and Music Video – Up to 10%, but no more than 30 seconds, of the music and lyrics from an individual musical work (or in the aggregate of extracts from an individual work), whether the musical work is embodied in
   copies, or audio or audiovisual works. Any alterations to a musical work shall not change the basic melody or the fundamental character of the work.
4. Illustrations and Photographs – a photograph or illustration in its entirety but no more than 5 images by an artist or photographer may be reproduced or otherwise incorporated as part of an educational multimedia project. When using photographs and illustrations from a published collective work, not more than lesser of 10% or 15 images reproduced or incorporated.
5. Numerical Data Sets (what about these?)

Copying and Distribution Limitations – no more than two use copies

1. EXAMPLES OF WHEN PERMISSION IS REQUIRED
2. Using Multimedia Projects for Non-Educational or Commercial Purposes.
3. Duplication of Multimedia Projects Beyond Limitations Listed in These Guidelines.
4. Still Can and need to do Fair Use Analysis

Fair Use Cases

Sundeman v. The Seajay Society, Inc., 142 F.3d 194 (4th Cir. 1998).

1. Court found it fair use for a researcher at a nonprofit foundation selected quotations from an unpublished literary manuscript of historical and cultural interest, and she included those quotations in an analytical, oral presentation that she delivered to a scholarly society.
2. Purpose: Scholarly, transformative, criticism and comment. 
   Nature: The "unpublished" nature of the work against fair use.
   Amount: The amount used was “consistent with the purpose of scholarly criticism and commentary,” and there was no evidence of taking "the heart of the work."
   Effect: The presentation did not displace any market for publishing the original work, and potentially increased demand for the full work.
   
   Case summaries adapted fromhttp://copyright.iupui.edu/fusummaries.htm, Copyright © 2002 Indiana University.

Course pack cases.

1. ,758 F.Supp. 1522 (S.D.N.Y. 1991).Not a fair use (and infringement for Kinko's to photocopy book chapters for sale to students as "course packs" for their university classes.  Lost on 3 of 4 factors.
2. Princeton University Press v. Michigan Document Services, Inc., 99 F.3d 1381 (6th Cir. 1996).  Private copy shop infringed (and not fair use) to create and sell "course packs“.  (8-5 decision).  Focused on ability to get licenses in commercial endeavor.

Multimedia Uses

1. Fair use to use forty-five seconds of a short song as background music during the introductory and ending sequences of a program about drugs and youth that was broadcast on a PBS affiliate in Michigan. The broadcaster also sold videotape copies of the program to educational institutions "for educational use only."

Four Factors

• Purpose – Defendant had limited circulation of copies of tapes and did not earn a profit.  The background music was transformative.
• Nature – Work is creative – against fair use
• Amount – The amount not excessive. The use did not include any lyrics of the original song and only a portion of the original music, and then only as background.
• Effect: The use did not harm sales.  The Defendant sold in educational tapes a niche the song writer did not fill.

Copying for Websites and Public Dissemination

1. Times v. Free Republic, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000)

Not Fair use for a bulletin board website to allow members to post full articles from newspapers in order to generate awareness and discussion of various subjects. The site had unrestricted access and defendant was for for-profit corporation (seeking non-for-profit status, but did not charge for materials.

1. , 166 F.3d 65 (2nd Cir. 1999).  Not fair use for Comline to translate Japanese articles into English and prepare abstracts of the information – copied and competed with copyright holder.
2. Nunez v. Caribbean International News, Corp., 235 F.3d 18 (1st Cir. 2000).

Fair use allowed a newspaper to publish three photos of a beauty pageant winner taken for her portfolio but a controversy surrounded the photos because it was newsworthy.

1. , 227 F.3d 1110 (9thCir. 2000).

Not fair use for the Philadelphia Church of God (PCG) reproduced and distributed an out-of-print publication owned by Worldwide Church of God (WCG). The publication was the foundation of PCG’s religious beliefs.

Four Factors

• Purpose: Use increased defendant’s church membership – against fair use.
• Nature: creative work – not fair use.
• Amount: Copied entire work. Reasonable person would expect to pay license.
• Effect: The verbatim copying and distribution of the work has a harmful effect on WCG’s ability to prepare an annotation and market the work in the future.

Conclusion: Not fair use for a non-profit religious organization to copy verbatim a religious publication of another non-profit religious organization even though the work is no longer available.  The copyright holder did not want the work distributed.

If you would like to contact the General Counsel's Office of Campus Crusade, please call 407-826-2100 or email gco [at] ccci [.] org.

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